{¶1}
Defendant-appellant, Trevonte Jenkins, appeals his
convictions and sentence. He raises the following assignments
of error for our review:

1. Appellant was denied a fair trial where an in-court
identification was impermissibly suggestive.

2. The trial court abused its discretion by denying
Appellant's request for a Telfaire instruction
where it was warranted by the evidence.

3. Appellant's convictions were not supported by
sufficient evidence and the trial court erred by denying his
motion for acquittal.

4. The convictions were against the manifest weight of the
evidence.

5. Appellant's sentence was contrary to law where it was
clearly and convincingly not supported by the record.

6. The trial court erred by failing to merge all allied
offenses of similar import and by imposing separate sentences
for allied offenses which violated Appellant's state and
federal rights to due process and protections against double
jeopardy.

{¶3}
A Cuyahoga County Grand Jury indicted Jenkins for two counts
of attempted murder in violation of R.C. 2903.02 and 2923.02,
two counts of felonious assault in violation R.C.
2903.11(A)(2), two counts of discharging a firearm on or near
prohibited premises in violation of R.C. 2923.162(A)(3), two
counts of improperly handling firearms in a motor vehicle in
violation of R.C. 2923.16(A) and (B), one count of having
weapons while under disability in violation of R.C.
2923.13(A)(2), one count of criminal damaging or endangering
in violation of RC. 2909.06(A)(1), and one count of domestic
violence in violation of R.C. 2919.25(A). Except for the
counts for criminal damaging or endangering and domestic
violence, all of the counts carried one-, three-, and
five-year firearm specifications. Additionally, the counts
for attempted murder and felonious assault carried a notice
of prior conviction and a repeat violent offender
specification.

{¶4}
Jenkins waived his right to a jury trial as to the counts for
having weapons while under disability, the notices of prior
conviction, and repeat violent offender specifications. Prior
to trial, Jenkins filed a motion in limine, requesting the
court to prohibit the state's witness, John Eanes, from
identifying Jenkins during trial, arguing that the
identification would be unreliable and unduly suggestive.
After a hearing, the court denied Jenkins's motion.
Before Eanes testified at trial, Jenkins renewed his
objection on the same grounds, which the court denied.

{¶5}
The following evidence was presented at trial.

{¶6}
On October 7, 2016, the Beautiful Soulz festival, featuring
local hip-hop artists, took place at the Phantasy club on
Detroit Avenue in Lakewood, Ohio. Phantasy is part of a
larger complex containing three separate bars and venues,
including the Phantasy, the Symposium, and the Chamber.

{¶7}
Jonathan Bobak went to Phantasy that night after one of the
performing artist's promoters hired him to take
photographs of the event. Bobak testified that he went
outside the complex to smoke a cigarette around 10:00 p.m.
that evening. He stated that while outside, he saw Jenkins
hit "a Caucasian female, " who he believed to be
Jenkins's girlfriend, multiple times on the sidewalk
outside of the complex. Bobak testified that a number of men
approached and beat up Jenkins for hitting his girlfriend and
that he eventually intervened because the men were
"really kind of roughing [Jenkins] up a bit" and
figured that Jenkins had "learned his lesson."
Bobak told Jenkins to go home and saw him walk toward Value
World, which was a few hundred feet away from the complex. He
testified that people visiting the complex typically park in
the Value World parking lot for events.

{¶8}
According to Bobak, after Jenkins left, the woman who Jenkins
had hit was a "mess, " crying and slurring her
words. He stated that the woman kept saying that she
"needed to call [her] dude" and that she appeared
to be under the influence "of something." Bobak
eventually left to go back inside to the festival, and after
working for another hour and a half, decided to leave and
walked outside around 12:00 a.m. He testified that as he
waited for his ride, he saw the same woman from earlier
walking toward Value World and then get into the passenger
side of a white vehicle parked in the businesses' parking
lot. Bobak could not see who was driving the white vehicle.
He stated that the vehicle exited the Value World parking
lot, turned left on Detroit, and drove by the complex. He
testified that he saw the vehicle's driver's-side
window roll down right before gunshots were fired toward the
complex and that upon realizing that it was gunfire, people
began running into the complex. Bobak suffered a gunshot
wound to his right leg during the incident, and he testified
that he received treatment for the wound a few hours later.

{¶9}
Bobak also testified that law enforcement visited him later
that day to look at a photo array. Bobak identified Jenkins
in the photo array as the man involved in the fight with the
woman that occurred earlier on the night of October 7 outside
of Phantasy. At trial, Bobak stated that although he did not
see the shooter, he assumed that Jenkins was the shooter
after witnessing the woman get into the vehicle later after
saying she needed to contact "her dude."

{¶10}
George Trouche testified that he visited Phantasy on October
7, 2016, to perform at the music festival. He stated that
toward the end of the night he was waiting outside for a ride
when someone started shooting. He testified that he was
standing outside in front of the complex when he heard the
gunshots. He ran inside and later realized that he had been
shot in the leg. At trial, Trouche admitted that he did not
see where the shots were coming from or who the shooter was.

{¶11}
Gregory Cunningham testified that he is the owner of
G-Enforcement, a personal security company that staffs
security guards for venues and celebrities. He stated that
he, along with several of his employees, were at the complex
that night, working the venues and the entrances. According
to Cunningham, at one point during the evening, he was
outside the complex and witnessed a "young man fighting
a * * * white young lady." He testified that he saw the
man punch the woman "at least" five times before he
intervened and that some other men approached the young man
and started fighting with him. Cunningham eventually
intervened in the fight between the man and the other men,
and after he broke up that fight, the man walked toward the
Value World parking lot and got into a white four-door
vehicle. He stated that after breaking up the fight, the
woman, who seemed intoxicated, said that the man was her
boyfriend.

{¶12}
Cunningham testified that the woman asked him if she could
use his cell phone to call her boyfriend so that he could
come back and get her. Cunningham gave her his phone,
retrieved it a few minutes later, and then went back inside
Phantasy. A few minutes later, a number of people ran inside
the complex shouting, "[H]e's out there shooting,
the young man that drove away in the white car."

{¶13}
While he was not outside when the shots were fired,
Cunningham testified that he spoke to law enforcement when
they arrived and viewed a photo lineup later that day. The
lineup administration form was presented at trial and shows
that one of the six pictures is circled; the one that is
circled is not Jenkins. When presented with the form at
trial, Cunningham testified that he did not personally circle
or initial the page with the pictures of the suspects. He
testified that he told the officer that he recognized two men
in the lineup, one of whom was Jenkins. He also told the
officer that the men he identified were at Phantasy and that
Jenkins was the man involved in the fight with the woman.

{¶14}
John Eanes, Jr. testified that he worked as a security guard
for G Enforcement, and that he was working Phantasy's
front door all night. He testified that during the night, he
witnessed a man and woman arguing and fighting a few feet
away from Phantasy's entrance. He stated that they were
screaming at each other for a few minutes when the man began
hitting the woman. Eanes said that a group of men then
approached the man and began fighting him and that eventually
he and Cunningham intervened. He stated that after the fight
was broken up, Jenkins walked toward the Value World parking
lot and, a few minutes later, pulled out of the parking lot
in a "white Ford Fusion."

{¶15}
Eanes testified that the woman with whom Jenkins was fighting
remained outside of Phantasy and seemed to be "high or
something." He stated that the woman indicated that she
needed a ride to Lorain County and that he radioed Cunningham
to assist her. About two hours later, Eanes saw the white
vehicle return and pull into the Value World parking lot. He
also saw the woman walk toward Value World and testified that
a short time later, the white vehicle pulled out and drove
toward Phantasy. Eanes stated that as the vehicle approached
Phantasy, he saw the vehicle's driver's-side window
roll down, saw Jenkins's face, saw the woman in the
passenger seat, and saw Jenkins point a gun out of the
driver's-side window toward the group of people in front
of Phantasy. He stated that there were about 20 people
outside of Phantasy at that time and that he told everyone to
get inside when the gunfire started.

{¶16}
According to Eanes, he did not speak to the police because he
told Cunningham what he witnessed and that Cunningham took
the lead and said he would contact Eanes if he needed
anything. Eanes testified that he did not speak to police
until a few weeks before trial, months after the shooting.
When asked why he did not give a statement to the police
earlier, Eanes stated that he was not aware that the police
had identified and caught the shooter.

{¶17}
At trial, Eanes stated that he got a good look at both the
man and the woman and that the lighting in the area outside
of Phantasy was good. He testified that he remembered the man
who was fighting the woman and identified Jenkins as that man
in court.

{¶18}
Sadie Jones testified that she worked as a bartender at
Phantasy that night and arrived around 7:00 p.m., parking her
2006 Ford Freestyle right in front of the entrance to the
venue. During the shooting, Jones's vehicle was hit
multiple times. Jones stated that her vehicle's rear tire
was flat as the result of a gunshot, the driver's-side
window was "shot out, " her driver's-side door
had a bullet hole, and her driver's-side headrest had a
bullet hole.

{¶19}
Sarah Super testified that she went to Phantasy on the night
of October 7 with Jenkins, who was her boyfriend at the time,
but as of the date of trial was her fiancé. She stated
that they went to the club around 9:30 p.m. and that Jenkins
drove them in a white four-door rental car and that they
parked "around the corner from the club[.]" Super
stated that she did not know the make or model of the
vehicle.

{¶20}
According to Super, she drank a Four Loko on the way to
Phantasy and continued drinking at Phantasy and was heavily
intoxicated. Because of this, Super explained that she did
not recall getting into a verbal or physical altercation with
Jenkins that night. When asked about the bruises that
officers observed the next day at Super's house, Super
testified that it was "probably" from her
"drunk stumbling" that night and that she
"probably fell down [her] steps[.]" Exhibits
submitted by the state during Super's testimony showed
bruises and scratches on Super's chin, neck, right eye,
left cheek, lower back, arms, and elbow. Super stated that
she did not have the bruises before going to Phantasy that
night.

{¶21}
Super testified that she did not remember leaving Phantasy
and did not know how she got home that night. She blacked out
and did not recall hearing any gunfire. Super stated that
when she woke up the next morning, Jenkins was with her, and
the white rental car they drove to Phantasy the night before
was parked outside of her home. When shown a photograph of
the rental vehicle, she confirmed that the vehicle's
license plate was from Wisconsin and read 876XPZ. When shown
another photograph of items found in the vehicle, Super
identified one of the items as her wallet, but stated that
she could not remember if she had her wallet on her person
when she went to Phantasy on October 7.

{¶22}
Officer Daniel Hilfiker testified that he was the officer who
administered the photo lineup with Cunningham. He testified
that Cunningham wrote on the form and circled the picture.
The officer was unclear as to what his instructions were. He
stated that after reading Cunningham the instructions, he
"showed him the pictures, and [] said if you see anybody
you recognize, * * * just circle them, initial and
date." Later, however, Officer Hilfiker agreed that the
purpose of the photo lineup was to identify the shooter. He
also testified that Cunningham only identified one
individual, which was not Jenkins, and that he understood
Cunningham's identification to be of the shooter.

{¶23}
Officer Ariana Zuk of the Lakewood Police Department
testified that she responded to a call of an incident at
Phantasy on October 8 and, upon arriving, began identifying
evidence at the scene. She testified that she discovered that
the suspect shooter had been identified as a "[b]lack
male who was with a white female[, who] * * * had left
eastbound in a white four-door vehicle[.]" Officer Zuk
stated that officers found a keychain with a tag at the scene
that "came off of the suspected shooter" and
contained the make, model, and year of the vehicle
("2015 HYUN ACNT"), the license plate number
("876XPZ"), and the vehicle's color
("white"). The tag also stated, "Average Key
Replacement Cost $225."

{¶24}
Laura Stanton testified that she is a forensic DNA analyst
with the Cuyahoga County Medical Examiner's Office. She
explained that based on her test of item four, which was a
blood swab from the driver's seat of the white rental
vehicle (later identified as a Hyundai Accent), Jenkins was
the source of the DNA to a reasonable degree of scientific
certainty.

{¶25}
Officer Jeffrey Robinson of the Lakewood Police Department
testified that he responded to the scene and took photographs
of the evidence and that based on the bullet holes in
Jones's vehicle, the shots were "coming from a
moving object[.]" He admitted on cross-examination,
however, that his conclusion was a general assumption based
on his observations and was not the result of in-depth
calculations concerning the bullet holes' angles.

{¶26}
Sergeant Duane Brown of the Lakewood Police Department
testified that he was in the police station that night when
he received a request to check the traffic cameras for
information related to a drive-by shooting that occurred
outside of Phantasy. He said that he received a phone call
about shots being fired around 12:46 a.m. He reviewed the
footage and witnessed a white four-door sedan driving
northbound on West 117th Street toward Phantasy around 12:41
a.m. He stated that another camera captured the same car
heading westbound on Detroit Avenue toward Phantasy a minute
later. At trial, Sergeant Brown admitted that the cameras did
not capture any part of the drive-by shooting.

{¶27}
Detective Terry Miller of the Lakewood Police Department
testified that he was assigned to investigate the shooting
outside of Phantasy and reviewed the footage collected from
the traffic cameras. He identified the suspect vehicle based
on the keychain collected from the scene and observed the
vehicle on the footage entering the city around 12:41 a.m.
When asked about some of the witnesses' statements that
the suspect vehicle was a Ford Fusion or Taurus, Detective
Miller stated that he did not "put a lot of credence
into that" because "[generally, sedans that are all
generic looking, anybody in my opinion can be
confused[.]" Detective Miller stated that he was able to
identify the vehicle's license plate information from a
still photograph of the camera footage "[a]fter kind of
zooming in and out."[1] Detective Miller stated that he
contacted Enterprise Rent-A-Car and learned that the vehicle
was a 2015 Hyundai Accent that was rented to Jenkins from an
Enterprise location in Elyria.

{¶28}
Based on that information, Detective Miller explained that
officers obtained an arrest warrant for Jenkins and a search
warrant for the addresses where police believed Jenkins
lived, one of which was Super's home in Elyria. According
to Detective Miller, during the search of Super's home,
as well as the search of the white rental vehicle parked
outside of the home, officers located and photographed a
ticket stub for the Beautiful Soulz festival on the weekend
of October 7-8. Detective Miller stated that officers
collected blood from the driver's seat vehicle of the car
as well based on the fact that witnesses told officers that
the shooter was in a fight earlier in the night and was
"possibly bleeding." During the search, officers
also collected some items of clothing, including a black
T-shirt and a pair of blue jeans, which Super told officers
that Jenkins wore to Phantasy on the night of the shooting.
Further, when asked why officers did not contact Eanes right
away, Detective Miller stated that officers "weren't
aware that he existed as far as someone who had actually been
a witness to the events."

{¶29}
During trial, Jenkins requested that the court give the jury
the instruction concerning eyewitness identification set
forth in United States v. Telfaire,469 F.2d 552
(D.C.Cir.1972), but the court denied his request.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;{&para;30}
The jury found Jenkins guilty of all counts and the related
firearm specifications. The bench found Jenkins guilty of
having weapons while under disability and the notice of ...

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